R v Zackarali, 2024 MBPC 6

CITATION : R v Zackarali , 2024 MBPC 6 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) J. Toupin-McGillis ) for the Crown – and – ) ) Tyrone Zackarali ) T. Priebe ) for the Accused ) ) ) Reasons for Decision ) Delivered January 23, 2024 H.L. ALLEN, P.J. [ 1 ] Tyrone Zackarali is charged with four counts of Uttering Threats resulting from events which took place in Winnipeg on June 2, 2023.

The charges all allege that he threatened co-workers at the Monarch Industries (Monarch) plant where he had been employed for 21 years. [ 2 ] The Crown called four witnesses, all employees of Monarch, three of whom are complainants as to the charges before the court. Mr. Zackarali testified at the trial. [ 3 ] Many of the facts alleged at trial were agreed upon by both sides. [ 4 ] On the day in question, Mr. Zackarali had been asked to attend a meeting with the company’s Human Resource officer after his shift.

Present at the meeting were Trisha Chikousky – the Human Resource officer, Ruben Abrenica – a floor supervisor at the company, and Lawrence Romel Marquez who was Mr. Zackarali’s union representative. [ 5 ] At the meeting Ms. Chikousky notified the accused that as a result of a safety infraction, which is alleged to have happened on his just-completed work shift, he was being suspended from work for one day. [ 6 ] All parties agree that Mr. Zackarali became upset and said to the Human Resource person and Mr. Abrenica, “You don’t know shit, and fuck both of you.” At that point, Ms. Chikousky and Mr.

Abrenica left the meeting and walked down a short hallway to the Human Resource office. Mr. Marquez remained in the interview room with the accused with the hope of trying to calm him. According to the testimony of Mr. Marquez, the accused said that he would not leave quietly and that he would have to take either him (Marquez) or one of Chikousky or Abrenica hostage. The accused admits that he used the profanity as stated above but denies saying that he would take anyone hostage. [ 7 ] As a result of this interaction, Mr.

Marquez testified that he ended the meeting with the accused and they both left the interview room. Marquez was behind the accused as he walked through the Human Resource area. Mr. Marquez said that the accused was yelling loudly as he walked through the area but that he does not know what he was yelling. [ 8 ] Ms. Chikousky and Mr. Abrenica both testified that they could hear the accused yelling in the hallway. They say that he yelled, “Fuck Monarch. I will kill them.” Both witnesses said they have worked with the accused for years and recognized his voice. Ms.

Chikousky also testified that she watched the accused leaving the building and that he appeared to be ranting and giving the finger towards the Monarch building. [ 9 ] The fourth witness for the Crown was Muhammed Rahmani, a security guard at Monarch Industries. He testified that he spoke briefly with the accused before the Human Resource meeting and that the accused told him that “he wanted time off for the summer”. He also testified that he was in the area of the Monarch parking lot near the accused when Mr. Zackarali left the meeting with Human Resources. Mr.

Rahmani testified that the accused was repeatedly yelling “fuck Monarch”, was giving the finger to the building, and at one point said that he was going to get a gun, come back and kill everyone in the building. He said that Mr. Zackarali was furious and was screaming loudly. He testified that he was in the parking lot a few feet from the accused’s car and heard him clearly. After the accused left, he went into the building and told Ms. Chikousky what happened outside. The police were then called. [ 10 ] Mr. Zackarali testified on his own behalf.

He admitted all of the previously outlined facts other than that he denied threatening anyone and denied saying anything about taking a hostage or getting a gun. After admitting that he told Ms. Chikousky and Mr. Abrenica to fuck themselves, he said that he felt good about doing that “because they are horrible people”. [ 11 ] He admitted that he was yelling “fuck Monarch” as he left the building and that he was presenting his middle finger to the

building as he left. Positions of the Parties [12] The defence argues that Mr. Zackarali denied the offences and that he should be believed. Further, the defence argued that hedid not make the threats alleged but that if he did, the Crown has not proven that he intended his words to be taken seriously. [13] The defence cited the Supreme Court case of R v Kelly O’Brien (R v O’Brien, 2013 SCC 2) as authority for the proposition thatthe Crown must prove that the accused intended the threatened individuals to take his remarks seriously and be intimidated by them.

Infurtherance of this argument, the defence points out that Mr.

Marquez, when asked how he felt about the hostage statements, said that hewasn’t sure how he felt, and at another point in his testimony said, “That’s just Tyrone.” [14] It is notable that in O’Brien the majority decision quoted from R v Clemente, (SCC), [1994] 2 SCR 758wherein Justice Cory said (at para 9): [T]he question of whether the accused had the intent to intimidate, or that his words were meant to be taken seriously will, in the absenceof any explanation by the accused, usually be determined by the words used, the context in which they were spoken, and the person towhom they were directed. [15] The defence also argued that Mr.

Marquez was the only witness close to the accused when he was in the Human Resourcehallway and he did not hear the threats alleged, and that this should raise a reasonable doubt. [16] The position of the Crown is that the four witnesses provided very similar testimony as to the allegations before the court. [17] The Crown referenced the Supreme Court of Canada case of R v McRae, 2013 SCC 68. That case sets out the essentialelements of the charge of uttering threats.

At paragraph 9, the case reads: “The elements of the offence include: (1) the utterance orconveyance of a threat to cause death or bodily harm; and (2) an intent to threaten.” [18] As to assessing what words constitute a threat, the McRae case quoted Justice Cory from R v McCraw, (SCC),[1991] 3 SCR 72, who said (at paras 26-27): The structure and wording of s. 264.1(1)(

a) indicate that the nature of the threat must be looked at objectively; that is, as it would be bythe ordinary reasonable person. . . The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken andhaving regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to areasonable person? [19] In McRae, the Court said (at paras 11 and 13): The starting point of the analysis should always be the plain and ordinary meaning of the words uttered.

Where the words clearlyconstitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete. . . . Thus, the legal question of whether the accused uttered a threat of death or bodily harm turns solely on the meaning that a reasonableperson would attach to the words viewed in the circumstances in which they were uttered or conveyed. The Crown need not prove thatthe intended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took it seriously(Clemente, at p. 763; O'Brien, at para. 13; R. v.

LeBlanc, (SCC), [1989] 1 S.C.R. 1583 (confirming the trial judge'sinstruction that it was not necessary that "the person threatened be ever aware that the threat was made": (1988), (NBCA), 90 N.B.R. (2d) 63 (C.A.), at para. 13)). Further, the words do not have to be directed towards a specific person; a threat against anascertained group of people is sufficient (R. v. Rémy (1993), (QC CA), 82 C.C.C. (3d) 176 (Que. C.A.), at p. 185,leave to appeal refused, [1993] 4 S.C.R. vii (threat against "police officers" generally); R. v.

Upson, 2001 NSCA 89, 194 N.S.R. (2d) 87,at para. 31 (threat against "members of the black race" generally)). [20] The accused also argued that he did not have the mens rea to constitute this offence. On this point the McRae case says thefollowing at paragraphs 18 and 19: It is not necessary to prove that the threat was uttered with the intent that it be conveyed to its intended recipient (Clemente, at p. 763) orthat the accused intended to carry out the threat (McCraw, at p. 82).

Further, the fault element is disjunctive: it can be established byshowing either that the accused intended to intimidate or intended that the threats be taken seriously. . . The fault element here is subjective; what matters is what the accused actually intended. However, as is generally the case, the decisionabout what the accused actually intended may depend on inferences drawn from all of the circumstances (see, e.g., McCraw, at p. 82).Drawing these inferences is not a departure from the subjective standard of fault. In R. v.

Hundal, (SCC), [1993] 1S.C.R. 867, Justice Cory cites the following words from Professor Stuart which explain this point: In trying to ascertain what was going on in the accused's mind, as the subjective approach demands, the trier of fact may draw reasonableinferences from the accused's actions or words at the time of his act or in the witness box. . . [Emphasis added: p. 883.]

[Emphasis in original.] [21] In

summary, the Court in that case says that “a court will often have to draw reasonable inferences from the words and thecircumstances, including how the words were perceived by those hearing them” (at para 23). Analysis [22] In this case, as in any case in the criminal courts in Canada where credibility is at issue, the Court must consider the SupremeCourt decision in R v W(D), (SCC), [1991] 1 SCR 742.

That case sets out an analytical formula for the proper format toadjudicate cases of this nature. [23] The first requirement is that the trial judge assess the evidence of the accused, in light of all the evidence heard at trial, anddetermine whether that evidence can be believed in whole or in part and if so, does it constitute a defence to the charge. [24] In this case, Mr. Zackarali acknowledged all the circumstances of the events of the day in question as set out by the witnesses,except for any of the acts which could be considered criminal.

He acknowledged using multiple profanities towards the Human Resourcerepresentative and the floor supervisor, and he acknowledged repeatedly directing profanities towards Monarch generally. He alsoacknowledged repeatedly making an obscene gesture towards the building. He acknowledged being angry as to what was transpiring. [25] When Mr. Zackarali spoke about telling the Monarch people to “fuck themselves”, he did so with a smile on his face. He alsosmiled when he described the Human Resource person and the floor supervisor as “horrible people”. [26] All of Ms. Chikousky, Mr. Abrenica and Mr.

Marquez were consistent as to their descriptions of the events that happened thatday. The only disparity exists as to Mr. Marquez saying that although he knows that the accused was yelling in the hallway he wasn’taware as to what he was saying. All of those three and the security guard told the Court how upset, angry, volatile and profane Mr.Zackarali was on the day in question. [27] Additionally, as to a number of questions, the accused would only answer, “No comment”. [28] Even Mr. Marquez who was present to help the accused said that he became concerned after the remarks were made as tohostages.

He was so concerned that he ended his interaction in the boardroom with the accused and went immediately to the office of Ms.Chikousky to share his concern with her. [29] The security guard reported that he clearly heard the accused say that he was going to get a gun and kill everyone in thebuilding. This witness acknowledged that he was unsure of one of the words said by the accused, as in he said he thinks the accused saidthat he was going home to get a gun, but he’s not sure if the word was home, but he was clear as to the substantive remarks alleged. [30] After assessing the evidence of Mr.

Zackarali, I conclude that the words he used and the anger he evidenced is consistent witha person who is out of control and is capable of lashing out verbally in a manner aimed to upset and intimidate. [31] I did not believe the evidence of the accused and it did not leave me with a reasonable doubt as to his guilt. [32] Turning to the third element of the W(

D) test, it is nevertheless necessary that I be satisfied that the evidence of the Crownestablishes all the essential elements of the offences. [33] I accept the evidence of Ms. Chikousky and Mr. Abrenica that they heard the accused say, “I will kill them.” They bothtestified that they believed “them” meant the two of them. [34] As stated earlier, they both have worked with the accused for lengthy periods of time – Mr. Abrenica for all of the accused’s 21years at Monarch, and for Ms. Chikousky, throughout the three years she has worked there.

They both were clear that they know hisvoice, that he was yelling so loudly that they heard him even through a closed door. [35] As to Mr. Marquez, I got the impression that if he could help the accused in any way he would. He appeared sympathetic toMr. Zackarali. Nevertheless, he testified as to the hostage remarks he alleges were made by the accused. In my opinion, these allegedremarks were consistent with the outlandish behaviour evidenced by the accused on that day. [36] Similarly, I felt the testimony of Mr. Rahmani was provided in a forthright manner.

At no time did he appear to be operatingwith an animus against the accused. [37] The accused disputed Mr. Rahmani’s evidence that prior to the meeting the accused said he wanted to get time off for thesummer. However, that remark is consistent with the testimony of the other three witnesses who said that during the meeting in theboardroom, Mr. Zackarali said, “Why a one-day suspension, why not 30 days.” This statement was acknowledged by the accused, but hedid not provide an answer as to why he would make that strange suggestion.

In my opinion, this is another example of the accused’sirrational behaviour that day. [38] I accept the evidence of the security guard that he was in close proximity to the accused in the parking lot after the meeting andthat he heard him swearing at Monarch, saw him making hand gestures at the building and said that he was getting a gun to kill everyonein the building. [39] All four of the Crown witnesses appear to have taken Mr. Zackarali’s threats seriously. Ms. Chikousky asked Mr. Abrenica tostay with her after the meeting as she was alarmed. She and Mr.

Abrenica had terminated the initial meeting with the accused because ofhis behaviour. Saying things like “you don’t know shit”, “fuck yourselves”, etc. had strayed so far over the lines of propriety that theyfelt the meeting had to end.

[ 40 ] Mr. Marquez on hearing the hostage remarks ended his involvement with the accused and immediately reported what happened to the others. The security guard was sufficiently concerned as to attend to the Human Resource office and contact police. [ 41 ] In my opinion, given the escalating nature of the profanity and the hard-to-fathom behaviour of the accused, I believe that any reasonable person in these circumstances would find these remarks threatening.

Any reasonable person after terminating a disciplinary meeting due to the employee’s verbal tirade, then hearing “I will kill them” screamed at volume, would feel threatened.

As well, any reasonable security guard hearing and seeing someone come out of a building yelling “fuck Monarch” and throwing middle fingers at a building and then hearing “I am getting a gun and coming back”, would be threatened, intimidated and very concerned by that behaviour. [ 42 ] Based on all of the evidence heard at trial, I believe that it is a reasonable inference to draw that the accused said these things with the intent to intimidate and upset the people he was involved with at Monarch Industries. [ 43 ] His behaviour appears irrational from the point wherein he said that he wanted time off for the summer, but particularly escalated after being told he was being suspended.

The threats to kill were made in a hallway outside the Human Resource office. It is reasonable to assume that both Ms. Chikousky and Mr. Abrenica would be in that office or nearby. All witnesses were clear that Mr. Zackarali was shouting loudly. [ 44 ] As to the hostage threat, that remark was prefaced by the accused saying to his union representative, “I cannot leave here quietly.” The reference to taking a hostage is made in a closed office to someone who is, so to speak, on his side. It is not made with his perceived adversaries present. It is made in what should have been a calmer atmosphere.

In this day and age, to threaten to take a hostage in any place, but in particular in a large enterprise where many people work, is a serious matter. Once again, I believe that these remarks were made and they were designed to intimidate the three others who had met with him that day. [ 45 ] Similarly, I believe that the threats made as to coming back and killing everyone in the building were designed to intimidate. The security guard testified that Tyrone Zackarali saw him as he came out. As well, his ranting and his hand gestures were seen by Trisha Chikousky from the building.

Conviction [ 46 ] Accordingly, I am satisfied that the Crown has proven the essential elements as to the charges of uttering threats to Lawrence Marquez, Trisha Chikousky and Ruben Abrenica. [ 47 ] As to the charge relating to Mr. Marquez, I am satisfied that a reasonable person would perceive those statements to be a threat of death or bodily harm. Mr. Marquez said that he was sufficiently concerned to end his involvement with the accused and immediately report the remarks to Human Resources. [ 48 ] As to the charge alleging that Mr.

Zackarali made a threat to Monarch Industries employees, the Supreme Court in McRae said that in a prosecution of this nature, the Crown does not have to prove that the threat was directed towards a specific person, “a threat against an ascertained group of people is sufficient” (at para 13). [ 49 ] I am satisfied that the remarks testified to by the security guard were made, that they do constitute a threat to the employees of that business and that the accused made them with the intent to threaten and intimidate those employees. [ 50 ] Accordingly, I am satisfied that the Crown has proven the essential elements of all of these charges and the accused is convicted on each count on the information.

Original signed by Judge Allen H. LAWRENCE ALLEN, P.J.